Defunded Rutgers paper may get second chance (thanks to 2000 SCOTUS ruling)

This year, the Daily Targum at Rutgers University marked its 150th anniversary. It won’t be the last, but it might be close to the last—the future of one of the nation’s oldest student newspapers is in doubt, due to the failure in May of a referendum to renew the student fee that makes up about 75 percent of its budget.

“The Targum will exist next semester and next year,” Sandy Giacobbe, the paper’s business manager, says. “We have reserves we are relying on currently, but we have to find an alternative way of funding the paper.”

Student fees are a common source of funding for college newspapers. They range from a dollar or two per student, per semester to $20 or more. At some schools, the fees are assessed and distributed by the university administration, the student government, or a quasi-independent committee; at others, such as Rutgers, the fees are subject to a vote of the student body.

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It’s not clear, however, that fees allocated (or un-allocated) through elections are a legal way to fund a newspaper. At a public university like Rutgers, fees must be allocated in what the US Supreme Court called a “viewpoint neutral” manner, in its decision in 2000 in University of Wisconsin v. Southworth.

That court gave little detail as to what might constitute viewpoint neutrality. The Foundation for Individual Rights in Education, a legal nonprofit focused on First Amendment rights in academia, thinks an election doesn’t fit the bill. On June 3, FIRE called defunding the Targum a First Amendment violation and asked Rutgers to restore the paper’s funding, citing Southworth and other federal cases.  

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“There is just no way to impose viewpoint-neutral systems on top of a popular vote,” Adam Goldstein, an attorney with FIRE, tells CJR. “A referendum is fundamentally flawed. There’s no way out of making it a popularity contest.”

The Daily Targum’s $11.25-per-student fee actually won 68 percent of the vote, but that wasn’t enough. University rules call for 25 percent of the student body of each of Rutgers’ seven undergraduate colleges to vote yes for a fee to be assessed on students of each college. Turnout in the election was only about 30 percent, Giacobbe says, so the Targum missed the 25 percent mark in all seven colleges. Four of the seven colleges had already failed to renew the fee during the last referendum, in 2016.

A conservative group at Rutgers ran a two-year campaign against the Targum’s fee renewal, after the Targum reported that it posted a flier nearly identical to one created by a white supremacist group. The conservative campaign against the Targum was cited in reports on the paper’s loss of funding, but Giacobbe says he doesn’t think it was a major factor. Most of the students who voted wanted to keep paying for the Targum; the problem was low turnout.

Giacobbe is aware of FIRE’s letter and say he’s been meeting with university officials to address the First Amendment question and look for other ways of funding the Targum. Dory Devlin, a Rutgers spokeswoman, writes in an email to CJR that the university received FIRE’s letter and plans to “take a careful look at what the organization has to say about the referendum process.”

FIRE’s view of the law is not universal. The constitutional law scholar Erwin Chemerinsky, the dean of the University of California, Berkeley, School of Law, is among the skeptics. He thinks that a fairly administered student election is consistent with viewpoint neutrality.

“The reality is, if a school wants to have a student newspaper it can, and if it doesn’t want to have a student newspaper, it doesn’t have to,” he says. “There’s no First Amendment obligation to have a newspaper, and students can decide how they’re going to spend their fees.”

There isn’t an easy answer here, says Mike Hiestand, senior legal counsel with the Student Press Law Center. “I feel for schools on this one, and I don’t often feel for schools,” he says. “The court left them hanging. It said, ‘Make these systems viewpoint neutral, but we’re not going to tell you how to do it.’”

Some universities moved away from student fee elections after the Southworth decision, Hiestand says, and started allocating fees through boards that include students, faculty, administrators, and outside advisors. Ideally, such boards should operate under ground rules that do not allow them to discriminate based on political viewpoints, newsgathering, or other First Amendment–protected activities.

Elections are relied upon by many student media organizations to award student fees, particularly those that are editorially independent and not affiliated with a journalism school. Some newspapers, including those at UCLA and UC Berkeley, turned to student fee elections during or after the Great Recession, to supplement their declining advertising revenue. Others adopted them in the 1960s or 1970s, as a way to pay the bills without having to deal with censorious university administrators.

Or, fees can be awarded by student governments, which carries its own risks. At the University of Kansas, the Daily Kansan gets about half of its budget from a $2 per student, per semester fee, says Rob Karwath, the general manager and faculty adviser for the Kansan. The fee must be approved every year by the Student Senate, which has, in the past, used that authority to retaliate against the Kansan for its coverage of student government.

“Three years ago, the Student Senate cut the funding, and they cited editorial coverage,” Karwath says.

The Kansan sued the university, and the case was settled with a promise that the paper would be guaranteed three more years of full funding. Three years came and went without an alternative funding plan, but Karwath says the newspaper and the Student Senate have mended their relationship and the fee was renewed this year without incident.

“Everybody understands that a university without good campus media isn’t much of a university,” Karwath says. “But we’ve got to build in some protections. We’re not always going to be here.”

At Rutgers, the Daily Targum will exist on life support for the coming school year, but without a new funding plan, the plug may have to be pulled after that.

“This is a paper that’s been around for 150 years. It’s a fundamental part of the campus,” Hiestand says. “To zero out the funding, it just leaves the campus in a lousy situation. If this is the funding mechanism, it needs to be fixed.”

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Tony Biasotti is a freelance writer in Ventura, California. Find him on Twitter @tonybiasotti.